Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  5362/18 IT

 

CLAIMANT:                          Karen Martine McFall

 

RESPONDENT:                  Brendan McKee, t/a Saveways 3 Ardoyne

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant was fairly dismissed upon the ground of making a false declaration of cash holdings in the till.  The tribunal finds that due to the insufficiency of the investigation carried out by the respondent there was no evidence to support the other findings relied upon by the respondent, namely that the claimant was guilty of theft and misappropriation of Post Office money.  The claimant’s claim of unfair dismissal is dismissed.  In light of the failure of her claim of unfair dismissal, there is no freestanding jurisdiction to make an award in respect of the claimant’s claim of failure to provide a main statement of terms and conditions, which is also dismissed.

 

 

CONSTITUTION OF TRIBUNAL:

 

Employment Judge:          Employment Judge Gamble

                       

Members:                             Mr E Grant

                                                Ms J McNulty          

 

 

APPEARANCES:

 

The claimant was accompanied and represented by her sister, Ms Andrea McFall.

 

The respondent was represented by Mr P Moore, of Copacetic Business Solutions.

 

 

BACKGROUND

 

1.            The claimant presented a claim to the industrial tribunal on 6 March 2018.  The claimant alleged that she had been unfairly dismissed.  The claimant was dismissed on 21 December 2017 for gross misconduct on three disciplinary charges, namely:

 

·         theft;

 

·         misappropriation of Post Office money; and

 

·         making a false declaration of cash holdings in the till.

 

The claimant had worked in the respondent’s Flax Centre Post Office from sometime in May 2002 until her dismissal.

 

THE CLAIMANT’S CASE

 

2.            The claimant denied that she was guilty of wrongdoing or theft from the Post Office and asserted her belief that the respondent had no reasonable evidence upon which to base his decision to dismiss her.  She further asserted:

 

“there have been a few HR issues over the years but I feel like I was being pushed out over the last 18 months.”  In her witness statement, the claimant said “I feel this was an attempt by the postmaster to discredit me and get rid of me as the last 18 months in the job I have been feeling like I was being pushed out. …  In August/September 2016 the Post Office workers received redundancy letters stating that if we didn’t take voluntary redundancy our hours would be reduced to 16 hours per week.  At the time I was working 33 hours per week but agreed to the reduction and was offered 7 hours in the supermarket attached owned by Mr McKee.  At the same time Mr McKee’s Aunt, Clare Callaghan-Hegarty was employed as post office manager even though we were told our hours were cut as the post office wasn’t making any money and he couldn’t afford to pay the wages.”

 

3.            In the claimant’s witness statement, and in the submissions which were made at the conclusion of the hearing, the claimant also sought an additional award in respect of failure to provide a main statement of terms and conditions.

 

THE RESPONDENT’S CASE

 

4.            The respondent lodged his response on 1 May 2018.  In this response, the respondent asserted that the claimant had been fairly dismissed on grounds of gross misconduct, following a thorough investigation.  As the claimant was offered her statutory right of accompaniment and was offered and exercised a right of appeal (which was delegated to an outside party), it was the respondent’s position that the resulting dismissal was procedurally and substantively fair.  The misconduct relied upon by the respondent in the ET3 response in resisting the claim was solely “misappropriation of company funds”.  However, the dismissal was in fact grounded upon findings that the claimant was guilty of theft, misappropriation of Post Office money and making a false declaration of cash holdings in the till, and these were the grounds relied upon at the hearing, in contending that the dismissal was fair.

 

THE EVENTS LEADING UP TO THE CLAIMANT’S DISMISSAL

 

5.            The following matters are common case between the parties:

 

a.        The Flax Centre Post Office employed four cashiers, including
Ms Callaghan-Hegarty.  The Post Office had three tills at the counter.  It was common case that the claimant usually worked at the first till and Ms Callaghan-Hegarty worked at the middle till.  The cashiers balanced their tills at the end of each day.  The practice within the respondent’s post office business was that cashiers declared the cash at the end of their shift and that money was retained in the lockable till drawer and additional monies were placed in the pouches within the safe in the Post Office.  Money was not banked in any conventional sense at the end of a shift, but was carried forward.  This was done on the basis that the Post Office paid out more than it took in.  The post office did not operate a standard float.  Large sums of money were retained in both the till and within the pouch, in the safe.

 

b.        The claimant worked her last shift for the respondent commencing at 8.30 am on Friday, 24 November 2017.  Her shift was due to end at 1 pm. She completed a balancing exercise in respect of her till and completed a cash declaration in respect of this balancing exercise at around 1.15 pm, before leaving the respondent’s premises.  Her manager, Ms Callaghan-Hegarty had relieved the claimant and Ms Callaghan-Hegarty continued working in the Post Office after the claimant left the respondent’s premises.

 

c.         When the claimant arrived for her work in the Flax Centre Post Office on Monday, 27 November 2017 she was asked to meet the respondent, Mr McKee, in his office.  He explained to her that a spot check had been carried out several hours after her shift had ended on Friday, 24 November 2017 (sometime around 4.45pm) and that there had been a shortfall between her cash declaration and the monies held cumulatively between the till drawer box and the Versatech money bag (referred to during the course of the hearing as a “pouch”) in an amount of £3,600.00.  Both the claimant and the respondent referred to £3,614.00 being overdeclared/missing in the case papers. However, the sum which was missing appears to have been £3,600.00 (page 63 of the bundle), and this was the amount notified by the respondent to Post Office Limited, repaid by the respondent to the Flax Centre Post Office, and referred to in the respondent’s witness statement as being the cash shortage discovered on the spot check.

 

d.        The claimant was suspended with immediate effect from
27 November 2017.  She attended a disciplinary meeting with the respondent on 14 December 2017 to answer disciplinary charges as follows:

 

·      theft;

 

·      misappropriation of Post Office money; and

 

·      making a false declaration of cash holding.

 

e.        The claimant was advised by letter dated 21 December 2017 that all of the allegations against her had been upheld.  The letter stated:-

 

“I have reached this decision having considered the large amount of money missing from your till and the fact that you were the only person who operated from that till and who was responsible for balancing it, or in this case purporting to balance the till by claiming on your balance sheet that there was more cash in the till than was actually in it.

 

This was money which you are solely responsible for and having considered your answers at your disciplinary hearing I examined the CCTV footage for the day that the spot check was carried out and confirmed that you were the only person using that till up until the spot check was carried out.

 

I therefore formed the reasonable belief that you had taken the money from the till and knowingly falsified your balance sheet in order to give the impression that your till was correct when it clearly was down several thousand pounds.”

 

The letter advised that a decision had been made that the claimant’s conduct constituted gross misconduct.  Further, the claimant was advised that her employment was terminated with immediate effect. The effective date of dismissal was therefore 21 December 2017.

 

f.          The claimant was offered and exercised her right of appeal against this decision. In her letter of appeal, the claimant asserted her innocence and stated that the balance in the declaration was correct at the time she had closed her till.  The claimant requested a copy of her employment contract and of the company disciplinary policy and procedures.  In addition, the claimant asked whether the matter had been reported to the police and, if so, requested a copy of the relevant crime reference number.

 

g.        The claimant’s appeal was heard on Friday, 26 January 2018 by
Mr Dylan Loughlin of MCL Law.  These arrangements reflected the fact that the respondent is a sole trader.  The claimant’s appeal was not upheld.

 

TRIBUNAL PROCEDURE

 

6.            The claim was subject to case management at Case Management Hearings on the following occasions:

 

a.            21 June 2018, when (amongst other directions issued to the parties) the respondent was ordered to provide the claimant with all documentation relevant to her dismissal and the reason for her dismissal by 5 July 2018; and

 

b.            14 September 2018, when the respondent undertook to immediately provide replies to the request for additional information and confirmed that CCTV of the alleged theft taking place had been overwritten before the claimant’s claim form was received.

 

7.            The claimant was represented by her sister, who is not a professional/legal representative.  During the course of the hearing, the tribunal made such enquiries of witnesses as it considered appropriate for the clarification of the issues, and to ensure that the parties were on an equal footing, so far as was practicable, in accordance with the overriding objective.

 

8.            The Hearing was stayed on the second day of evidence when it became apparent that there was a live Police investigation still ongoing.  The hearing was reconvened when the Police investigation had been completed and no further proceedings were pursued.

 

SOURCES OF EVIDENCE

 

9.            The tribunal received witness statements and heard oral evidence on behalf of the respondent from Ms Clare Callaghan-Hegarty, who is the manager of the respondent’s Post Office business (it was not disputed that she is also the Aunt of the respondent); the respondent, Mr McKee; and Mr Dylan Loughlin of Copacetic Business Solutions, who conducted the appeal hearing.

 

10.         The claimant, Ms Karen McFall, also provided a witness statement and gave oral evidence in support of her claim.

 

11.         The tribunal also read and considered all of the documents which were provided to the panel in advance of the hearing, as well as additional documents which were produced during the course of the hearing.

 

THE ISSUE FOR DETERMINATION BY THE TRIBUNAL

 

12.         The issue before the tribunal was whether the claimant’s dismissal was fair.  It was not challenged by the claimant in the case put forward by her that the allegations or any of them could amount to gross misconduct and potentially are fair reasons for a dismissal within Article 130(2)(b) of the Employment Rights (Northern Ireland) Order 1996.

 

13.         The only issue for the tribunal, in considering whether the dismissal was fair, was whether the respondent entertained a reasonable suspicion amounting to a belief in the guilt of the employee in respect of all or any of the charges of misconduct relied upon to ground the dismissal, at the time of the dismissal. 

 

14.         The claimant in her claim form stated “I do not believe he had reasonable evidence to dismiss me.”  Accordingly, the tribunal needed to be satisfied that the respondent had reasonable grounds for believing that the claimant was guilty in respect of each of the alleged charges of misconduct after conducting a fair and proportionate investigation.

 

15.         The tribunal’s role is to consider only whether the dismissal was fair, in light of the evidence before it.  The tribunal is not required to investigate or make any finding on whether the claimant or indeed someone else stole or misappropriated monies or whether the money declaration was actually false at the time it was made.  The tribunal is concerned only with the reasonable belief of the respondent in regard to these matters.  To that end, the tribunal is confined to considering whether the respondent’s belief in the guilt of the claimant in respect of each of the charges was held on reasonable grounds following as much investigation as was reasonable in the circumstances.

 

THE RELEVANT LAW

 

16.         PART XI UNFAIR DISMISSAL

 

CHAPTER I RIGHT NOT TO BE UNFAIRLY DISMISSED

 

The right

 

“126.— (1)   An employee has the right not to be unfairly dismissed by his employer.

 

              (2)  Paragraph (1) has effect subject to the following provisions of this Part (in particular Articles 140 to 144).”

 

Fairness

 

General

 

“130.—(1)    In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

 

(a)          the reason (or, if more than one, the principal reason) for the dismissal, and

 

(b)          that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

(2)   A reason falls within this paragraph if it—

 

       …

 

(c)       relates to the conduct of the employee,

 

…

 

(4)   Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

 

(a)       depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

 

(b)       shall be determined in accordance with equity and the substantial merits of the case.

 

…

 

(6)   Paragraph (4) is subject to Articles 130A to 139.”

 

Employment (Northern Ireland) Order 2003

 

Failure to give statement of employment particulars, etc.: industrial tribunals

 

“27.—    (1)  This Article applies to proceedings before an industrial tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule 4.

 

              (2)  If in the case of proceedings to which this Article applies—

 

(a)       the industrial tribunal finds in favour of the employee, …., and

 

(b)       when the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) or 36(1) of the Employment Rights Order (duty to give a written statement of initial employment particulars or of particulars of change), the tribunal shall, subject to paragraph (5), make an award of the minimum amount to be paid by the employer to the employee and may, if it considers it just and equitable in all the circumstances, award the higher amount instead.

 

…

 

(4)  In paragraphs (2) and (3)—

 

(a)       references to the minimum amount are to an amount equal to two weeks' pay, and

 

(b)       references to the higher amount are to an amount equal to four weeks' pay.

 

(5)  The duty under paragraph (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that paragraph unjust or inequitable.”

 

17.         The Court of Appeal in Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47 approved the earlier decision of Court in Dobbin  v  Citybus Ltd [2008] NICA 42 where the Court held:-

 

“(49)    The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores  v  Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v  Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley  v  Post Office and HSBC Bank PLC (formerly Midland Bank) –v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury  v  Hitt [2003] ICR 111.

 

(50)     In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

 

                       “Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

 

(1)       the starting point should always be the words of [equivalent GB legislation] themselves;

 

(2)       in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

 

(3)       in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

 

(4)       in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another;

 

(5)       the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.  ”

                                   

(51)     To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

 

“What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all, it must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.  It is not relevant, as we think, that the Tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the Tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt.  The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.  ”

 

18.         In Rogan the Tribunal were found to have substituted its view of the evidence for that of the employer, the error referred to at paragraph 50 sub paragraph (3) of the Iceland Frozen Foods decision above.

 

19.         An employer is not expected to conduct a quasi-judicial investigation into allegations of misconduct.  Nonetheless any investigation of the material facts must be carefully conducted and must be conscientious in character.  (Ulsterbus v Henderson [1989] IRLR 251).

 

20.         In Rice v Dignity Funerals [2018] NICA 41 the Northern Ireland Court of Appeal endorsed the summary of the legal principles relating to Article 130 of the 1996 Order set out in the minority judgment of Gillen LJ in Connolly v Western Health and Social Care Trust [2017] NICA 61.  These are as follows:

 

“[28]    …

 

(i)        The starting point is the words of Article 130(4) of the 1996 Order.

 

(ii)       The Tribunal has to decide whether the employer who discharged the employee on grounds of misconduct entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct.

 

(iii)      Therefore there must in the first place be established a belief on the part of the employer.

 

(iv)    The employer must show that he or she had reasonable grounds for so believing.

 

(v)       The employer, at the stage he/she formed the belief, must have carried out as much investigation into the matter as was reasonable.  It is important that an employer takes seriously the responsibility to conduct a fair investigation.

 

(vi)      The Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Industrial Tribunal) consider that the dismissal to be fair.

 

(vii)     In judging the reasonableness of the employer’s conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer.

 

(viii)    In many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view and another, quite reasonably, take another.

 

(ix)      The function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.

 

(x)       A Tribunal however must ensure that it does not require such a high degree of unreasonableness to be shown that nothing short of a perverse decision to dismiss can be held to be unfair within the relevant legislation. 

 

(xi)      Gross misconduct justifying dismissal must amount to a repudiation of the contract of employment by the employee.  The disobedience must at least have the quality that it is wilful.  It connotes a deliberate flouting of the essential contractual conditions.

 

(xii)     More will be expected of a reasonable employer where the allegations of misconduct and the consequences to the employee if they are proven are particularly serious.

 

(xiii)    In looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the employer’s view, have been appropriate, but rather whether dismissal was within the band of reasonable responses that an employer could reasonably make in the circumstances.  The fact that other employers might reasonably have been more lenient is irrelevant (see the decision of the Court of Appeal in British Leyland (UK) Ltd v Swift [1981] IRLR 91, Gair v Bevan Harris Limited [1983] IRLR 368 and Harvey on Industrial Relations and Employment Law at [975].

 

(xiv)    The conduct must be capable of amounting to gross misconduct.

 

(xv)     The employer must have a reasonable belief that the employee has committed such misconduct.

 

(xvi)    The character of the misconduct should not be determined solely by the employer’s own analysis subject only to reasonableness.  What is gross misconduct is a mixed question of law and fact.  That will be so when the question falls to be considered in the context of the reasonableness of the sanction.”

 

21.         Harvey on Industrial Relations and Employment Law states at paragraph [1463]

 

“If there is genuinely a dispute about whether misconduct was committed then the employer must investigate. The employer is unlikely to be acting reasonably if his belief that the employee has committed misconduct is unsupported by any objective evidence”.

 

22.         Stephenson LJ stated in W Weddel & Co Ltd v Tepper [1980] IRLR 96 at 101:

''… [employers] do not have regard to equity or the substantial merits of the case if they jump to conclusions which it would have been reasonable to postpone in all the circumstances until they had, in the words of the [employment] tribunal in this case, “gathered further evidence” or, in the words of Arnold J in the Burchell case, “carried out as much investigation into the matter as was reasonable in all the circumstances of the case”.  That means that they must act reasonably in all the circumstances, and must make reasonable inquiries appropriate to the circumstances.  If they form their belief hastily and act hastily upon it, without making the appropriate inquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably'.'

 

23.         In J Sainsbury v Hitt [2002] EWCA Civ 1588 [2003] ICR 111 the Court of Appeal in England and Wales held:

 

“The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason…”

 

24.         There are also a number of English authorities which have helped to interpret the application of the tests.  In Bowater  v  North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal (GB) Longmore LJ stated:

 

“But the employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

 

He further noted that parliament had entrusted the tribunal with “the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal.”

 

25.         In Salford Royal NHS Foundation Trust  v  Roldan [2010] IRLR 721 EWCA, Lord Justice Elias stated:-

 

“Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances.  In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee.  So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite.

 

In A v  B the EAT said this: “Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers.  Of course even in the most serious cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.” ”

 

26.         In Spence v Department of Agriculture and Rural Development [2011] IRLR 809, the Northern Ireland Court of Appeal held that subject to some exceptions, “a fair procedure requires that normally an employer should consider disclosing anything in its possession which may be of assistance to an employee who is contesting the disciplinary charge, or wishes to make submissions in relation to penalty.”

 

27.         In Connolly v Western Health and Social Care Trust [2017] NICA 61 the Northern Ireland Court of Appeal reviewed the scope of unfair dismissal law, including the meaning and application of Article 130(4)(b) of the 1996 Order.  In both Connolly and Rice the Northern Ireland Court of Appeal cited with approval Sandwell & West Birmingham Hospitals NHS Trust v Mrs A Westwood [2009] UKEAT/0032/09/LA:  

 

“109 … it still remains to be asked – how serious a breach is that? Is it so serious that it amounts to gross misconduct? In our judgment that is not a question always confined simply to the reasonableness of the employer's belief.  We think two things need to be distinguished.  Firstly the conduct alleged must be capable of amounting to gross misconduct.  Secondly the employer must have a reasonable belief that the employee has committed such misconduct.  In many cases the first will not arise.  For example, many misconduct cases involve the theft of goods or money.  That gives rise to no issue so far as the character of the misconduct is concerned.  Stealing is gross misconduct.  What is usually in issue in such cases is the reasonableness of the belief that the employee has committed the theft.

 

110 … The character of the misconduct should not be determined solely by, or confined to, the employer's own analysis, subject only to reasonableness.  In our judgment the question as to what is gross misconduct must be a mixed question of law and fact and that will be so when the question falls to be considered in the context of the reasonableness of the sanction in unfair dismissal or in the context of breach of contract …”

 

28.         In Ardron v Sussex Partnership NHS Foundation Trust [2018] EWHC 3157 (QB), [2019] IRLR 233 the High Court considered the meaning of gross misconduct in the employment context, stating:

 

“(9)     The concept of “gross misconduct” in the employment law context connotes misconduct which justifies summary dismissal, and which therefore amounts to a repudiatory breach of contract.  There is no fixed rule of law defining the degree of misconduct which will justify dismissal.  Gross misconduct may include, but is not limited to, dishonesty or intentional wrongdoing, for example: conduct which is seriously inconsistent with the employee's duties to his employer; or conduct which is of such a grave and weighty character as to amount to a breach of the confidential relationship between employer and employee, such as would render the employee unfit for continuance in the employer's employment, and give the employer the right to discharge him.  The focus is on the damage to the relationship between the parties.  Dishonesty and other deliberate actions which poison the relationship will obviously fall into the gross misconduct category, but so in an appropriate case can an act of gross negligence.  See Adesokan v Sainsbury's Supermarkets Ltd [2017] EWCA Civ 22, [2017] IRLR 346 paras [21]–[23] (Elias LJ).  Very considerable negligence, historically summarised as “gross negligence” is therefore required for a finding of gross misconduct: Sandwell & Birmingham Hospitals NHS Trust v Westwood (2009) UKEAT/0032/09 at [112]–[113].”

 

29.         In Neary v Dean of Westminster [1999] IRLR 288 it was held that an employer is entitled to dismiss summarily for gross misconduct, being conduct “which so undermines the trust and confidence which is inherent in the particular contract of employment that the employer should no longer be required to retain the employee.”  In that case, the employee was fairly summarily dismissed for financial wrongdoing short of dishonesty.  Lord Jauncey stated:

 

“The character of the institutional employer, the role played by the employee in that institution and the degree of trust required of the employee vis-a-vis the employer must all be considered in determining the extent of the duty and the seriousness of any breach thereof.”

 

30.         At paragraph [36] of Connolly the court agreed with the statements in Harvey on Industrial Relations and Employment Law [1550]-[1566] that dismissals for a single first offence must require the offence to be “particularly serious.”  In Adesokan v Sainsbury's Supermarkets Ltd [2017] EWCA Civ 22, Elias LJ stated:

 

“Dishonesty and other deliberate actions which poison the relationship will obviously fall into the gross misconduct category, but so in an appropriate case can an act of gross negligence.”

 

In that case, the Court of Appeal in England and Wales upheld the summary dismissal for a first offence of such a kind as fair, notwithstanding the claimant’s 26 years’ unblemished service.

 

31.         The Burchell and Iceland Frozen Foods tests have appeared in the majority of unfair dismissal decisions which have been promulgated and approved by the relevant courts in the 40 years which have elapsed since and they remain good law in this jurisdiction.

 

ASSESSMENT OF THE EVIDENCE

 

32.         The tribunal heard first from Ms Callaghan-Hegarty.  Ms Callaghan-Hegarty gave her evidence in a straightforward manner and the tribunal found her to be a helpful witness.  Ms Callaghan-Hegarty gave evidence that she had introduced the security pouches, that when she had done so the claimant had declined to use the seals because she said there was no need to, as she trusted everyone in the Post Office.

 

33.         The tribunal heard next from the respondent, Mr McKee.  His evidence was at times inconsistent and contradictory.  By way of example, Mr McKee made no mention of having viewed the CCTV footage in his witness statement, when recounting the investigation.  During his oral evidence, he stated that he had viewed the CCTV footage on the day when the spot check was carried out.  His evidence was contradicted by the content of the letter of dismissal, which indicated that the CCTV was only checked after the disciplinary hearing.

 

34.         Mr McKee’s evidence about how and when the shortfall was repaid was also inconsistent and confusing.  During oral evidence on 1 October 2018, he was asked to clarify how cash shortages were addressed by him.  He gave evidence that for the previous financial year he had repaid in the region of £800 to £900, “plus that money there that I paid back.”  The tribunal understood “that money there” to be a reference to the shortfall identified in the spot check.  The respondent was then asked when he paid that money back, and responded that it had been paid back “this summer” and went on to say his bank statements would show this.  On 2 October 2018, during his evidence, the respondent advised the tribunal that the shortfall was repaid by a cheque.  A copy cheque stub dated 6 December 2017 was produced to vouch this.  He also produced documentation purporting to confirm a cash payment dated 7 January 2018 of £3600 on a Sage nominal account.  The respondent gave evidence to the tribunal that the Post Office, of which he was the sub-postmaster, was unable to accept the cheque and that the Post Office required that the shortfall would have to be replaced on a like for like (i.e. cash) basis.  On the final day of the hearing, the respondent was recalled and introduced audit trail information from his Sage accounts, a report for “Kiosk A” showing an accumulation of cash payments on 2 January 2018, including a cash payment of £3600, and an end of day report for “Till 3” which was explained to be within the Post Office also dated 2 January 2018.

 

35.         Accordingly, the tribunal accepted Mr McKee’s evidence only where it was corroborated by the documentary evidence before it or the evidence of other witnesses.  In relation to the existence of the shortfall following the spot check, the tribunal found Mr McKee’s email of 1 December 2017 to Timmy Grant of Post Office Limited, reporting a cash shortage of £3,600.00, together with the evidence of Ms Callaghan-Hegarty, to be persuasive evidence as to occurrence of that shortfall.  Drawing the attention of the Post Office Limited to a shortfall of these proportions could potentially have attracted additional scrutiny of the Post Office business of which he was sub-postmaster, and potentially adverse consequences.  Accordingly, the disclosure of the shortfall to Post Office Limited strongly corroborates the existence of the shortfall.

 

36.         Mr Loughlin’s evidence was given in a straightforward manner.  Mr Loughlin provided a witness statement to the tribunal and answered questions.  His statement indicates that he attended the premises in order to “carry out [his] own investigation into the disciplinary process”.  Mr Loughlin confirmed to the tribunal that his role was a review of the process, and not a reinvestigation.  The tribunal, in light of all the evidence before it, does not agree with his conclusion that the disciplinary process in respect of all of the disciplinary charges under consideration was sufficient for the reasons set out below in this judgment.

 

37.         The claimant’s evidence was generally consistent.  Throughout the disciplinary process and the hearing she maintained that the balance in the till was as declared by her at the end of her shift on 24 November 2017 and that she was unable to proffer an explanation for the monies being short beyond that they were correct when she made her declaration.

 

38.         She conceded during cross examination that she had not advanced the case that she was making in her witness statement (regarding other staff having access to each other’s money drawers and the safe remaining open) at either the disciplinary investigation, the disciplinary hearing or the appeal hearing.  Further, the claimant also accepted that she had not raised any complaint regarding her perception that the respondent was forcing her out, prior to her dismissal or in her appeal, following dismissal.

 

39.         In the tribunal’s view these concessions were significant.  The claimant, when challenged for a reason for not speaking up, had stated that she did not wish to accuse any of her colleagues.  The tribunal is not satisfied with this explanation, particularly with regards to the disciplinary meeting and the appeal meeting.  By the time of the disciplinary meeting, it should have been clear to the claimant that her job was on the line.  It was clearly in her interests to have made the assertions contained at paragraphs 3 and 7 of her witness statement (namely that “Everyone who works there has access to each other’s money drawers and the safe is left open at all times” and “I feel this was an attempt by the postmaster to discredit me and get rid of me as the last 18 months in the job I have been feeling like I was being pushed out.”) at the disciplinary meeting, or at the very latest at the appeal meeting.  The assertion made by the claimant of mutual access by staff to money drawers and regarding the safe remaining open was not put forward at the investigation stage, the disciplinary stage or the appeal stage.  By the time the appeal meeting was convened, she could have (and should have) disclosed her fears that she was being “discredited” and “pushed out”.  She had already been dismissed and would have had nothing to lose by putting forward any concern she had about the process which had led to her dismissal.  Instead, her allegation that she was being pushed out was first made by the claimant in her claim form dated 6 March 2018.  Her concerns about the safe being left open and mutual access to money drawers were first put forward as part of her case in her witness statement dated 24 July 2018.

 

40.         The claimant also accepted during cross examination that she was solely responsible for monies within her till.

 

41.         She further accepted that Ms Callaghan-Hegarty had introduced protocols around cash handling, asserting that these were not “enforced”.

 

42.         The claimant was also challenged about her efforts to mitigate her losses.  The tribunal noted that there was a letter from the claimant’s general practitioner stating that she had been unwell with anxiety and depression since December 2017 and was still unfit to work as at September 2018.  The claimant’s GP did not attend the hearing and was not cross examined.  The claimant conceded during cross examination that she had been well enough to consult with her solicitor, attend the disciplinary investigation meeting, attend the disciplinary hearing meeting, lodge an appeal, attend the appeal meeting, go on holiday and prepare/pursue the tribunal proceedings.

 

RELEVANT FINDINGS OF FACT

 

43.         The tribunal accepts the respondent’s account that sometime after the completion of the claimant’s shift on 24 November 2017 that the respondent and Ms Callaghan-Hegarty carried out a spot check of the monies held within till drawers and tamperproof bags within the safe.  The claimant’s monies did not match the amount shown on her closing declaration and were short in an amount of £3,600.00.  The tribunal, notwithstanding the reservations set out at paragraph 33-34 above regarding the respondent’s evidence, accepts that there was a significant and serious shortfall of £3,600.00 against the claimant’s cash declaration, in light of Ms Callaghan-Hegarty’s evidence and the email from the respondent reporting the cash shortage to Post Office Limited.  The tribunal also accepts the respondent’s evidence that the cash shortage was replenished by transferring cash from a till in the adjacent supermarket business, in light of the corroborating documentary evidence produced during the hearing to vouch the transfer the internal transfer of cash between his businesses, as evidenced by the timely SAGE entry and audit trail.

 

44.         The tribunal further finds that, in keeping with the evidence of
Ms Callaghan-Hegarty, there had never previously been an issue with the claimant regarding the balancing of her till.  The respondent stated in his oral evidence that any prior cash shortages had been minor and that he trusted the claimant.  This is supported by the fact that the respondent had offered the claimant the supervisory role that he ultimately gave Ms Callaghan-Hegarty.

 

45.         The tribunal finds that Ms Callaghan-Hegarty had introduced accountability protocols around cash handling and it was accepted by the claimant during cross examination that the claimant was solely responsible for the cash within her locked drawer and pouch.  The tribunal finds that whilst the claimant presented these protocols as “not enforced”, her failure to seal her pouch and enter the seal number on the self-seal envelope was a serious ongoing breach of the respondent’s procedures.  The claimant’s wilful and flagrant disregard of these simple and reasonable procedures/instructions was ultimately a breach which exposed her to investigation when a shortfall was discovered.  Had the respondent taken a more active approach to enforcing these protocols, the claimant’s ongoing flagrant disregard to and breach of these rules could have amounted to gross misconduct, in and of itself, even without the existence of a loss to the respondent of £3,600.00.

 

46.         The categorisation of the disciplinary charges as gross misconduct was not challenged by the claimant.  The disciplinary rules of the respondent which were included at pages 97-99 of the bundle set out a non-exhaustive list of matters which would be treated as gross misconduct.  These included theft; refusal to carry out a reasonable work instruction; serious neglect of duties, or a serious or deliberate breach of [your] contract or operating procedures; and fraud and falsification of records.  The tribunal, acting as an industrial jury, finds that the disciplinary charges, and each of them individually, did amount to charges of gross misconduct which could warrant summary dismissal, on a first offence.  For the avoidance of doubt, the tribunal finds that the making of a false declaration of cash holdings in the till in the context of a busy Post Office, with the need for the respondent to maintain trust and confidence in the reliability of his employees, did in and of itself amount to gross misconduct.  The tribunal further finds that a declaration which was incorrect in an amount of £3,600.00 would give rise to a terminal loss of trust and confidence in the reliability of any employee.

 

47.         The tribunal finds that although the respondent was a sole trader, the size of his business undertakings were not insignificant.  During the hearing, the tribunal was informed that the respondent’s post office business employed a total of four employees.  The respondent’s adjacent supermarket business, which includes an off sales, employed 27 casual staff.  The respondent clarified that he had two further businesses which employed a further 18 staff, some full-time and some part-time.  The tribunal took this evidence into account when considering the issues before it.

 

48.         The tribunal has set out below its relevant findings of facts in relation to the claimant’s assertion that the disciplinary action was an attempt to discredit her.  The tribunal has also set out its relevant findings of fact in relation to the respondent’s belief/the sufficiency of the investigation into the more serious disciplinary charges of theft and misappropriation of Post Office money separately from the other disciplinary charge of making a false declaration of cash holdings in the till.

 

The allegation that the respondent acted to discredit the claimant and force her out

 

49.         The tribunal finds that the claimant’s hours were previously reduced by the respondent.  The respondent gave evidence that he had not reduced the claimant’s hours previously, as although her hours in the Post Office had been reduced, his evidence was that he made these up in full through other shifts in the adjacent supermarket business.  The claimant’s hours shown on the claim form, which the respondent had confirmed as accurate in the ET3 response, were 23.5 hours per week.  This is consistent with the claimant’s account of having had her hours reduced from 33 per week to 16 per week, and then augmented by seven hours per week in the supermarket.  Accordingly, the tribunal preferred the claimant’s evidence on the issue of whether she had been subject to a reduction of hours in 2016.

 

50.         Despite this finding, the tribunal does not find that the respondent was trying to discredit the claimant or force the claimant out, as asserted by her in her witness statement.  The claimant accepted that the respondent had allocated her additional hours in his supermarket to mitigate her loss.  The claimant also accepted that the respondent had offered her the supervisory role which was ultimately filled by Ms Callaghan‑Hegarty.  This is not consistent with the actions of an employer who was seeking to force out or discredit an employee.  Further, the tribunal finds that if the respondent had been seeking to force the claimant out and discredit her, as asserted by her, he would not have waited a period of some fifteen months to do so.  On the contrary, the tribunal finds that the disciplinary proceedings were instigated against the claimant upon the discovery of a serious cash shortage, and not as a means of discrediting the claimant or forcing her out.

 

The respondent’s belief that the claimant was guilty of theft and misappropriation of Post Office money

 

51.         The tribunal finds that the respondent’s belief of the claimant’s guilt on the charge of theft was not sustained upon reasonable grounds, as he had not carried out such investigation as was reasonable in the circumstances.  The tribunal recognises the cash handling protocols which had been introduced by Ms Callaghan-Hegarty.  However, these protocols were not infallible.  Despite the introduction of the protocols, the safe remained open, the claimant did not in practice use the tamper proof seals to seal her pouch, and the keys to the lockable till drawers were kept in ordinary self-seal envelopes in an unlocked drawer.  The existence of these protocols did not, without more, give rise to reasonable grounds for the belief that the claimant was guilty of theft, and misappropriation of funds.  These matters may have supported a suspicion of the guilt of the claimant when the shortfall was discovered, but the tribunal finds in light of the limits of the investigation, it was not a reasonable suspicion giving rise to a belief of her guilt in relation to these matters.

 

52.         The respondent, during his oral evidence, stated that he believed the claimant had taken the money over a substantial period of time which he said was evidenced by her false declaration, discovered by the spot check.  There was no evidence to support this belief beyond the existence of the declaration which did not reconcile with the money present when the spot check was carried out.  This was not sufficient to ground a belief that the claimant was guilty of theft and misappropriation of Post Office money.

 

The sufficiency of the investigation in relation to the charges of theft and misappropriation of Post Office money

 

53.         The tribunal further finds that the investigation in relation to the disciplinary charges of theft and misappropriation of Post Office money was not sufficiently thorough and fair when compared to the claimant’s long service, her perceived honesty and the seriousness of the charges she was facing.  The need for a careful and thorough investigation in relation to these charges should have been obvious in the case of an employee who had worked for 15 years without issue, and who, on the evidence proffered on behalf of the respondent, was regarded as honest.  This was particularly so in view of the very serious nature of these allegations and the potential of harm to the claimant’s reputation in a small community.  These circumstances did require a careful, thorough and conscientious investigation, a requirement which was not fulfilled in this case.

 

54.         The tribunal had reservations regarding the following aspects of the investigation:

 

a.            Use of the CCTV: The tribunal was troubled by the extent to which the CCTV had been relied upon to ground the respondent’s disciplinary findings.

 

                                i.             The respondent’s witness statement makes no reference whatsoever to his having viewed CCTV as any part of his investigation.

 

                               ii.             The respondent’s letter of 21 December 2017 stated “This was money for which you were solely responsible for and having considered your answers at your disciplinary hearing I examined the CCTV footage for the day that the spot check was carried out and confirmed that you were the only person using that till up until the spot check was carried out.”  (Emphasis added).  This could only have been understood as meaning that the CCTV was not examined until sometime between 14 December 2017 (the date of the disciplinary hearing) and 21 December 2017 (the date of the letter).

 

                              iii.             However, during his oral evidence, the respondent informed the tribunal that he viewed the CCTV footage after carrying out the spot check on Friday 24 November 2017.

 

                              iv.             It was also clarified by the respondent that he only viewed the CCTV footage of the claimant’s shift from the morning of the day when the spot check was carried out and he stated to the tribunal that the CCTV did not show the claimant removing the missing monies.  The respondent suggested that this was because she had removed it sometime earlier or over a period of time.  Again, if this was the respondent’s belief, it is difficult to understand why he did not arrange for the CCTV to be reviewed for the preceding period to see if any instance of the claimant taking money could have been identified.

 

                               v.             He also described disregarding the CCTV (which was later overwritten and never provided to the claimant) and he described the CCTV footage as “not useful to my investigation”.  He went on to state “the CCTV was not used in my decision to dismiss Karen (the claimant)”.

 

b.         The extent of the investigation after the claimant was suspended: The claimant was suspended on 27 November 2017 following what was described as an investigation.  The respondent also clarified in oral evidence that he had told the claimant that she was suspended pending an investigation and gave evidence that further investigation continued following the claimant’s suspension, which consisted of meetings with Ms Callaghan-Hegarty “about was there was any other possibility of how that money was misappropriated”.  There was no documentary evidence before the tribunal of any further investigation having been carried out, nor was any further or other investigation referred to during the course of the disciplinary proceedings.  The tribunal, on the basis of the evidence before it, finds that no further investigation was considered or conducted before the disciplinary meeting on 14 December 2017.  The tribunal had no evidence before it that any other potential explanation was pursued for the shortfall beyond theft by the claimant.  In particular, there was no evidence which demonstrated that Ms Callaghan-Hegarty was interviewed as a suspect, notwithstanding that she was the only other person present between when the claimant carried out her balancing and cash declaration (when the claimant asserts her declaration was correct) and the carrying out of the spot check.

 

55.         The respondent’s own minute of the disciplinary meeting confirms that the meeting lasted for 4-6 minutes.  The minutes record that the claimant agreed the monies were short on Monday, 27 November 2017, that she asserted they had been there when she completed her declaration on Friday, 24 November 2017 and that she had offered no further explanation.  This disciplinary meeting did not provide the respondent with any further material which could have warranted his entertaining a reasonable suspicion amounting to a belief in the guilt of the employee of theft or misappropriation of Post Office money at the time of the dismissal.

 

56.         In relation to the appeal hearing, it was clear from Mr Loughlin’s evidence that he merely reviewed the process, rather than carrying out a reinvestigation.  Accordingly, Mr Loughlin’s appeal could not have served to cure any defect with the original investigation or disciplinary stage of the internal proceedings.  The respondent also gave evidence that if Mr Loughlin had wished to uphold the appeal, the respondent would have followed the advice he was given by Mr Loughlin.  The tribunal accepts on the basis of the evidence before it, and in light of the respondent’s sole trader status, that the appeal arrangements were sufficient to meet the requirements of the LRA code of practice on disciplinary matters.

 

The respondent’s belief that the claimant had made a false declaration of cash holdings in the till and the sufficiency of the investigation which gave rise to this belief

 

57.         As observed at paragraph 14 above, the tribunal is not required to make a finding as to whether the declaration was actually false when made, only as to whether the respondent believed this to be the case and did so reasonably, following such investigation as was reasonable in the circumstances.

 

58.         The tribunal finds that the disciplinary charge of having made a false declaration of cash holdings in the till was a less serious allegation than the disciplinary charges of theft and misappropriation of Post Office money.  In relation to this final charge of having made a false declaration of cash holdings in the till, the tribunal find that the respondent’s investigation was sufficient to find, on the balance of probabilities, that the declaration of cash holdings in the till made by the claimant was false (in the sense of being wrong or incorrect and failing to reconcile).  This final allegation includes the possibility of gross negligence as a cause, rather than or as well as dishonesty.  The tribunal, acting as an industrial jury, further finds on account of the following evidence before it (which is accepted by it) that the respondent held that belief on reasonable grounds following as much investigation as was reasonable in the circumstances:

 

a.            the money handling protocols introduced in the respondent’s business by Ms Callaghan-Hegarty;

 

b.            the acceptance by the claimant that she was solely responsible for the monies in her till and pouch which were the subject of the impugned cash declaration;

 

c.            the fact that all staff were subject to the same spot check and only the claimant’s declaration failed to reconcile with the cash held, (save for the other shortage of £100 by another member of staff which had been declared to management previously); and

 

d.            the viewing of the CCTV footage for the 24 November 2017 by the respondent (albeit after the disciplinary hearing, but before the decision to dismiss was made) which on the respondent’s evidence confirmed that the claimant alone had worked on that till and that Ms Callaghan-Hegarty could not be seen removing monies.

 

In light of all of these circumstances, the tribunal finds that no further investigation into the charge of making of a false declaration of cash holdings in the till was required beyond that carried out by the respondent.  The respondent was entitled to proceed to consider the evidence against the claimant and the responses put forward by the claimant.  The claimant failed to suggest any reason for the failure of her declaration to reconcile with the monies held and did not raise her concerns about access to tills by other staff or the safe remaining open as a potential reason for the cash shortage/failure to reconcile with her declaration, when provided with the opportunity to do so.  In the context of disciplinary proceedings, it would have been appropriate and in her interests for her to have done so.

 

59.         The tribunal finds that the charge of making of a false declaration of cash holdings was gross misconduct, given the nature of the respondent’s business and the size of the loss accruing to the respondent.

 

60.         The respondent’s representative acknowledged during submissions that it would have been better had the spot check been carried out at the end of the claimant’s shift on the 24 November 2017, in the presence of the claimant.  The tribunal agrees with this observation, but the failure of the respondent to do so is not fatal to his belief in all of the circumstances, that on the balance of probabilities, the claimant had made a false declaration.

 

61.         The respondent’s dismissal on the ground of making a false declaration of cash holdings in the till was fair and the dismissal fell within the band of reasonable responses given the size of the loss accruing to the respondent.

 

THE PARTIES’ SUBMISSIONS

 

The respondent’s submissions

 

62.         The respondent’s representative submitted the dismissal was fair, that the respondent had, on the balance of probabilities, formed a reasonable belief in the guilt of the claimant following a thorough investigation, which provided the claimant every opportunity to provide and explanation, at the investigation stage, the disciplinary hearing and the appeal.

 

63.         He further contended that the fact that no prosecution had been pursued did not free the claimant from the respondent’s belief in her guilt.  He submitted on the authorities of Burchell and Foley v Post Office [2000] ICR 1283 that the decision to dismiss lay squarely within the band of reasonable responses, and that any other employer would have dismissed the claimant for gross misconduct in the same circumstances.

 

64.         He asserted that during the spot check, all drawers and pouches had been examined, that only the claimant’s monies were short, that there had been an investigation, a disciplinary hearing and an appeal hearing.  He drew the attention of the tribunal to the terse and limited responses by the claimant during the internal process, and pointed to the illogicality of the respondent removing monies from the Post Office to have to pay it back.

 

65.         The respondent’s representative asserted on the basis of Burchell and Rogan that the investigation carried out by a respondent does not have to be perfect, acknowledging that it would have been better had the spot check been carried out in the claimant’s presence, but asserted that the dismissal remained fair.

 

The claimant’s submissions

 

66.         The claimant’s sister submitted on behalf of the claimant that the dismissal was unfair.  She highlighted that the claimant was a dedicated and well respected member of the team, who was held in high esteem by colleagues and customers.  She contrasted the approach of the respondent on this occasion when she was not told of or asked about the shortage until after the weekend, with his usual practice where the claimant’s help and support would be sought out of hours to address other shortages.  The tribunal accepts that over the years the claimant’s assistance would have been sought when there were issues regarding shortages.  However, the evidence before the tribunal was that these previous shortages, for example the £100.00 shortage which had been declared by another member of staff, which was also in existence at the time of the spot check, was on an entirely different scale to the deficit discovered in respect of the claimant’s till.

 

67.         She further highlighted that the respondent had conceded that he had viewed the CCTV footage and that there was no evidence of the claimant taking his money.  She drew the tribunal’s attention to the respondent’s assertion for the first time during the hearing that the claimant must have taken the monies over a period of time, yet he had failed to investigate or check other CCTV footage.  She further submitted that the respondent had failed to interview any other employees about the missing monies.  She highlighted the fact that no prosecution had been pursued against the claimant.  She contended the dismissal was unfair because a reasonable investigation did not take place.

 

Failure to provide a main statement of terms and conditions

 

68.         The claimant’s claim that she had not received a contract of employment from the previous business owner was pursued at the hearing.  This claim appeared in her schedule of loss, but was not mentioned in her witness statement.  However, in her oral evidence during the final day of the hearing, her uncontroverted evidence was that she had never received a contract of employment.  The respondent’s representative, in his submissions asserted that the contract had previously issued to the claimant, but there was no evidence before the tribunal to confirm this assertion.  Accordingly, the tribunal on the basis of the evidence before it holds that no contract of employment was provided to the claimant by the previous employer before the TUPE transfer, and there was no evidence in the documents provided to the tribunal of any updated statement of terms and conditions having issued to the claimant, even after her hours of work were varied.

 

69.         However, in light of the failure of her claim of unfair dismissal, there is no freestanding jurisdiction to make an award in respect of this claim, which is also dismissed.

 

APPLICATION OF THE LAW TO THE FACTS AND CONCLUSION

 

70.         In light of the findings of relevant facts set out above, the tribunal finds that the dismissal was fair, on the ground of making a false declaration of cash holdings in the till only.  This finding amounts to gross misconduct in light of the character of the respondent’s Post Office business and the role played by the claimant, as was the case in Neary.  The conduct of the claimant in making a false declaration (in the sense of being wrong or incorrect and failing to reconcile) was repudiatory to the continuation of the respondent’s trust and confidence in the claimant (as per Neary and Adesokan).  The respondent has satisfied the requirement set out in Burchell, of having entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time in respect of the disciplinary charge of making a false declaration of cash holdings in the till.  The tribunal finds that the respondent’s actual belief in the guilt of the claimant having made a false declaration was held on reasonable grounds following an investigation which was reasonable in the circumstances, given that this disciplinary charge was not as serious as the other disciplinary charges of theft and misappropriation of Post Office money.  The decision to dismiss was also in accordance with equity and the substantial merits of the case, as considered in the Connolly decision.

 

71.         The investigation which was conducted by the respondent into the other disciplinary charges of theft and misappropriation of funds was inadequate and unreasonable in all of the circumstances, including the claimant’s long service without issue, the seriousness of the charges the claimant was facing and the size and resources of the respondent’s business undertaking.  The tribunal finds that these charges did require a higher standard of investigation.  The investigation into these charges were not the careful and conscientious investigation required by A v B.  The investigation in relation to those charges of theft and misappropriation of funds did not meet the requirements set out in Salford Royal.  The respondent did not extend his investigation beyond the claimant.  Further, the evidence which tended to exculpate the claimant, namely the CCTV footage, was “discounted” from the respondent’s investigation because it did not show the claimant taking the money.  This CCTV footage should have been provided to the claimant as per Spence.  Accordingly, the tribunal finds that the respondent had insufficient evidence to support his belief and finding that the claimant was guilty of theft and misappropriation of company monies.  There was no actual evidence to show that the claimant had removed any monies from the respondent’s business at any time.

 

72.         In light of the finding that the claimant’s dismissal on grounds of having made a false declaration was fair, her unfair dismissal claim fails.  Her claim for an award for any failure by the respondent to provide a main statement of terms and conditions also fails.  Accordingly, the claimant’s claims are dismissed.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 1, 2 October 2018 and 29 April 2019, Belfast.

 

 

Date decision recorded in register and issued to parties: